Veterinary Practitioners Board of New South Wales v Kovac

1. [1]

   MITCHELMORE JA: The applicant, the Veterinary Practitioners Board of New South Wales (the Board), has both appealed and sought leave to appeal from an order of the NSW Civil and Administrative Tribunal (the Tribunal) striking out three of eight complaints in the Board’s application for disciplinary orders against the respondent, Dr Sam Kovac (Disciplinary Application). The Tribunal concluded that the Board failed to comply with the notice requirements in s 41 of the Veterinary Practice Act 2003 (NSW) (VP Act) in respect of the three complaints in question, and that this failure meant that the Tribunal did not have jurisdiction to hear and determine them: Veterinary Practitioners Board of New South Wales v Kovac [2025] NSWCATOD 118.

2. [2]

   The Board first commenced an appeal pursuant to cl 29(2)(b) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), which confers a right of appeal to the Supreme Court on a party to proceedings in which a “profession decision” is made. The term “profession decision” is defined in cl 29(1) to include, in (h), a decision for the purposes of the VP Act. Clause 29(4)(b) of the CAT Act provides that an appeal may be made as of right on any question of law or with leave on any other grounds. The Board advanced three grounds of appeal which it contended raised questions of law:

   1. (1)

      The Tribunal erred in its consideration of whether it had jurisdiction to deal with the three complaints, by proceeding on the basis that it was relevant to consider whether the Board’s findings that Dr Kovac was guilty of unsatisfactory professional conduct and professional misconduct were made in accordance with the procedures prescribed in the VP Act.

   2. (2)

      The Tribunal erred in finding that the Board’s failure to invite Dr Kovac to make written representations with respect to certain additional matters arising from its investigation into his conduct amounted to a “substantial bypassing” of the procedures prescribed in Pt 5 of the VP Act, in circumstances where Dr Kovac did make written representations with respect to those matters, and the Board considered those representations before making its findings.

   3. (3)

      Further or in the alternative to ground 2, the Tribunal constructively failed to exercise its jurisdiction in failing to determine a clearly articulated and substantial argument, namely, that any non-compliance by the Board with the requirements of s 41 of the VP Act did not result in procedural unfairness to Dr Kovac in circumstances where he made written representations on the further matters, which the Board considered.

3. [3]

   Dr Kovac submitted that the Board required leave to appeal because the Tribunal’s decision was interlocutory. He relied in this respect upon cl 29(6)(a) of Sch 5 of the CAT Act, which provides:

4. [4]

   The term “interlocutory decision” is defined in s 4(1) of the CAT Act as follows:

5. [5]

   Presumably in response to Dr Kovac’s objection, the Board filed an application for leave to appeal, which was heard concurrently with the substantive appeal. However, the Board’s primary position was that leave to appeal was not required because the Tribunal’s decision was not an “interlocutory decision” but an “ancillary decision”, also defined in s 4(1) of the CAT Act:

6. [6]

   The significance of the term “ancillary decision” for the purposes of the CAT Act lies in the provisions of the Act that deal with internally appealable decisions. Specifically, s 80 provides:

7. [7]

   Having regard to the distinction drawn in s 80(2) of the CAT Act, the parenthetical carve out of an “interlocutory decision” in the definition of “ancillary decision” makes some structural sense. Nonetheless, the terms of the latter definition give rise to a difficulty that Basten JA identified in AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 (“AQO”), without needing to resolve it:

8. [8]

   Section 80 of the CAT Act has no application to a “profession decision”, as cl 29(1) of Sch 5 provides that such a decision is not an internally appealable decision. Instead, as outlined above, profession decisions may be appealed subject to cl 29(6), which expressly identifies three classes of decision for which leave is required. Those classes include, in cl 29(6)(c), “a decision as to costs”. In Health Care Complaints Commission v Robinson [2022] NSWCA 164 (“Robinson”), Leeming JA observed that a decision as to costs would otherwise fall within the definition of an “ancillary decision”. It followed, in his Honour’s view, that the question of whether a decision to which cl 29 applies is an “ancillary decision” is a distraction from the real question. The real question was “whether cl 29(6) in Schedule 5 of the CAT Act, which qualifies the right of appeal in cl 29(4), is engaged”: at [15] (Kirk JA agreeing at [24]).

9. [9]

   Clause 29(6)(a) of Sch 5 refers to interlocutory decisions of the Tribunal. I have set out the definition of “interlocutory decision” above. The first nine matters, in (a) to (h1) of the definition, are “classically interlocutory”: Robinson at [18]. Coming at the end of that list, the reference in (i) to “any other interlocutory issue” would be read ejusdem generis as limited in the same way as the categories which precede it: Robinson at [18]. True it is that the paragraphs in the definition do not address decisions as to jurisdiction in terms. However, as Basten JA observed in [127] of AQO, in the context of s 80 of the CAT Act, the list does include, in (h), “the summary dismissal of proceedings”. In the context of cl 29(6) of Sch 5 of the CAT Act, this Court observed in Trinh v Medical Council of New South Wales [2024] NSWCA 58 that such a decision “might readily include dismissal on grounds which could be described as jurisdictional”: at [53] (Mitchelmore JA, Basten and Griffiths AJJA).

10. [10]

    I accept the force of Leeming JA’s observation in Robinson that the question for the purposes of cl 29 of Sch 5 is whether the requirement for leave in cl 29(6) is engaged. However, the construction of “interlocutory decision” that is adopted for that purpose, specifically its application to decisions of the Tribunal on jurisdiction, will have an impact on the scope of the definition of “ancillary decision” and the operation of s 80 of the CAT Act. I note that in this context the Appeal Panel of the Tribunal has characterised a decision of the Tribunal at first instance as to jurisdiction as an ancillary decision for the purposes of s 80, even when the decision was made in response to an application for summary dismissal: see Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [19]-[26] and the cases there cited.

11. [11]

    I consider that the approach that Basten JA outlined in [127] of AQO has much to commend it in so far as it both reflects the text of the definitions and the context and purpose of a requirement for leave in both s 80 and cl 29 of Sch 5 of the CAT Act. On that construction, leave would be required in the present case. However, it is unnecessary to express a concluded view and preferable not to do so in the absence of full argument on the implications of that construction for the operation of s 80 of the CAT Act. Although Dr Kovac opposed the grant of leave in the written submissions filed on his behalf, his counsel accepted at the hearing that if the Court concluded that the Tribunal had erred in its construction of the provisions of the VP Act, that conclusion would warrant a grant of leave to appeal. For the reasons set out below, the Tribunal so erred. Accordingly, to the extent that leave to appeal is necessary it should be granted and the appeal should be allowed.

Background to the Board’s application to the Tribunal

1. [12]

   The relevant factual background was not the subject of dispute in this Court. I have summarised it below largely by reference to paragraphs of the Tribunal’s reasons.

2. [13]

   The object of the VP Act, set out in s 3, is to regulate the provision of veterinary services for the following purposes:

3. [14]

   The term “veterinary practitioner” is defined in s 4 of the VP Act to mean “a person who is registered under this Act as a veterinary practitioner”. Part 4 of the VP Act makes provision for the Board to make decisions as to registration under the Act, with registration subject to prescribed qualifications and ongoing requirements. The Board, which is constituted under s 76 of the VP Act, is also required to keep and maintain a Register of veterinary practitioners, for which Div 4 of Pt 4 makes provision.

4. [15]

   Part 5 of the VP Act is titled “Complaints and disciplinary proceedings”. Section 35 contains a number of definitions, including of the term “complaint”, which means “a complaint made under this Part”, and the term “disciplinary finding”, which means “a finding of unsatisfactory professional conduct or professional misconduct”. Section 38(1) provides that any person, including the Board, “may make a complaint against a veterinary practitioner in respect of the veterinary practitioner’s conduct as a veterinary practitioner”. A complaint must be in writing, identify the complainant, and contain particulars of the allegations on which it is founded: s 40(1).

5. [16]

   Dr Kovac is a “veterinary practitioner” as defined in s 4 of the VP Act. On 18 December 2018, the owner of a deceased male Pomeranian dog, named Monty, made a complaint to the Board about Dr Kovac (the Monty complaint): at [5]. The Monty complaint made a series of allegations, including that Dr Kovac: had misrepresented that he would be present during a CT scan of Monty (in the course of which Monty died); had not taken precautions to ensure Monty’s safety; showed a lack of respect for his duty of care owed to Monty; demonstrated a lack of expertise; and failed to communicate to Monty’s owners the circumstances of Monty’s death.

6. [17]

   Section 41 of the VP Act provides:

7. [18]

   By letter dated 4 January 2019, the Board notified Dr Kovac of the Monty complaint. There was no suggestion that this letter did not comply with the terms of s 41 of the VP Act.

8. [19]

   Section 42 of the VP Act provides:

9. [20]

   In 2019, the Board commenced an investigation into the Monty complaint and a separate complaint relating to Dr Kovac’s treatment of another dog named Lucy (the Lucy complaint). The Board determined the Monty complaint in December 2019, but Dr Kovac alleged that the decision was affected by a number of procedural irregularities. Accordingly, the Board decided to commence a fresh investigation into the Monty and Lucy complaints: at [6].

10. [21]

    In May 2020, pursuant to s 81 of the VP Act, the Board established a three-person committee to investigate and make a determination in relation to the two complaints (the Committee). One of the grounds on which Dr Kovac alleged the Tribunal did not have jurisdiction to determine the complaints related to the Board’s delegation of its functions to the Committee. The Tribunal dismissed that ground and it is not in issue before this Court: at [127].

11. [22]

    In addition to the correspondence that the Board had exchanged with the legal representatives for Dr Kovac before the December 2019 determination, the Committee, after it was constituted, issued further correspondence in relation to its investigation of the Monty complaint. This included a letter from the Committee, dated 7 September 2020, in which the Committee raised a number of questions for Dr Kovac’s response that arose from the statement of another veterinary practitioner and interviews that the Committee had conducted with an employee of the practice. The matters raised in that letter included questions directed to specific clinical records and whether Dr Kovac had provided the full clinical records to the Board.

12. [23]

    On 27 November 2020, the Registrar of the Board sent a letter to Dr Kovac in relation to the Monty complaint, which was headed “Summons to appear before the Veterinary Practitioners Board”. The letter relevantly stated:

13. [24]

    It was common ground that the matters in items 4 and 5 of the Board’s 27 November 2020 letter (which the Tribunal referred to as “the further matters”) did not form part of the original Monty complaint. Rather, the further matters arose in the course of the Board’s investigation of the complaint.

14. [25]

    The hearing to which the Board’s letter referred did not proceed on 8 December 2020. Following what the Tribunal described as “interaction between the parties” (at [140]), the Registrar of the Board sent a further letter to Dr Kovac, dated 8 February 2021, which was in largely identical terms to the letter of 27 November 2020 but changed the date of the hearing to 26 February 2021. The hearing proceeded on that date.

15. [26]

    In advance of that hearing, the legal representative for Dr Kovac sent a letter to the Board, dated 17 February 2021. In that letter, the legal representative referred to the Board’s letters of 27 November 2020 and 8 February 2021 and submitted that the Board should withdraw each of the allegations, including the further matters. The letter made some general observations about allegation 4 and provided an affidavit from an intermediate support specialist employed by the record keeping service provider that Dr Kovac used. The letter also addressed each of the allegations 4a, 4b and 5.

16. [27]

    Section 47 of the VP Act addresses what is to occur after the Board has investigated a complaint. It relevantly provides:

17. [28]

    On 5 May 2022, the Committee issued its report into the Monty complaint: at [9]. In its report, the Committee stated that it was satisfied that Dr Kovac had engaged in unsatisfactory professional conduct and professional misconduct within the meaning of s 35 of the VP Act, for reasons that included the further matters. The Committee also determined to apply to the Tribunal for disciplinary findings against him: at [9].

18. [29]

    Division 3 of Pt 5 of the VP Act is titled “Applications to Tribunal for disciplinary findings”. Section 50 provides:

19. [30]

    On 29 November 2024, the Board lodged the Disciplinary Application: at [10]. The Board sought the cancellation of Dr Kovac’s registration, a non-review period of three years before future registration could be considered, and costs: at [1]. Under the heading “Grounds for Application (Including Particulars)”, the Board referred to having determined to prosecute the complaints attached to the Disciplinary Application, which arose from both the Monty and Lucy complaints.

20. [31]

    It suffices for present purposes to adopt the Tribunal’s summary of complaints six, seven and eight, which the Tribunal ultimately struck out:

Dr Kovac’s application to the Tribunal

1. [32]

   On 31 January 2025, Dr Kovac lodged an Application for miscellaneous matters in the Tribunal (the Miscellaneous Application) (amended on 2 May 2025), seeking dismissal of the Disciplinary Application in its entirety or, alternatively, that complaints six, seven and eight be struck out: at [11]. Ground 2 of the Miscellaneous Application was as follows:

2. [33]

   As I noted above, the Tribunal concluded that it did not have jurisdiction to determine complaints six, seven and eight, and struck out those complaints. Rather than address the Tribunal’s reasons separately, it is convenient to address them in the context of the grounds of appeal.

Ground 1: the Tribunal was not the appropriate forum to determine Dr Kovac’s application

1. [34]

   The Board submitted that the Tribunal was not the appropriate forum to decide the issues raised in the Miscellaneous Application because it did not have the statutory power to examine the validity of, or declare void, findings of the Board of unsatisfactory professional conduct or professional misconduct: at [36]. The Board raised two arguments in support of this submission, both of which it maintained on the appeal.

2. [35]

   First, the Board submitted that once disciplinary proceedings were commenced in the Tribunal, the findings of the Board were superseded and the Tribunal commenced afresh to consider and make findings about the conduct of the practitioner in question: at [37]. It followed, the Board submitted, that its determination had no real effect on the legal rights of the veterinary practitioner, and any deficiency in the statutory process leading to its determination could be dealt with during the course of the Tribunal proceedings. It was thus not necessary to review the basis on which the Board reached the requisite state of satisfaction. The Board relied on Health Care Complaints Commission v Hill [2022] NSWCA 270 (“Hill”) as providing analogous support for this proposition.

3. [36]

   The Tribunal does not appear to have separately addressed this argument in its reasons. It may be dealt with briefly, as the circumstances are not relevantly analogous. In Hill at [55]-[56], on which the Board relied, Basten AJA was considering relief in the nature of certiorari. The specific question was whether such relief was available to quash a decision of the Director of Proceedings of the Health Care Complaints Commission to bring proceedings against a practitioner in the Tribunal, alleging, relevantly, unsatisfactory professional conduct and professional misconduct. The primary judge in Hill had quashed the Director’s decision. Basten AJA concluded that her Honour erred in doing so as such relief was not available. That was because the Director’s decision did not have a discernible or apparent legal effect upon rights: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159; [1996] HCA 44.

4. [37]

   By contrast with Hill, Dr Kovac was not seeking to quash the Board’s decision. Rather, the issue he raised in the Miscellaneous Application was whether the Board had regularly engaged the Tribunal’s jurisdiction. The fact that, once seized of jurisdiction, the Tribunal would consider the matters the subject of the Disciplinary Application for itself is not an answer to that antecedent jurisdictional question.

5. [38]

   The Board’s second argument was that its application to the Tribunal for a disciplinary finding was contingent upon whether it was “satisfied” that a veterinary practitioner was guilty of unsatisfactory professional conduct or professional misconduct, which is the language in s 47(2)(a) of the VP Act. The Board submitted that Dr Kovac was asking the Tribunal impermissibly to go behind the Board’s satisfaction, when all that was needed to engage the Tribunal’s jurisdiction was the existence of that state of satisfaction. The Board sought to rely by analogy on decisions in which administrative review tribunals have been held to have jurisdiction on the basis that a decision has been made in fact, even if legally ineffective: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 24 ALR 307 (“Brian Lawlor”), and subsequent decisions such as Kim v Minister for Immigration and Citizenship (2008) 167 FCR 578; [2008] FCAFC 73 (“Kim”) and Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (“Plaintiff M174”).

6. [39]

   According to the Tribunal’s reasons, Dr Kovac submitted that the focus of this aspect of his Miscellaneous Application was the Board’s non-compliance with antecedent statutory steps. He submitted that where the non-compliance was sufficiently substantial, it affected the requirement that the Board be satisfied of the practitioner’s guilt of unsatisfactory professional conduct or professional misconduct in a manner that necessarily deprived the Tribunal of jurisdiction: at [41]. Put another way, the Board’s non-compliance operated “to infect the pathway to NCAT’s jurisdiction (which travels through ss 47(2)(a) and 50 of the VP Act)”: at [42]. Dr Kovac relied primarily on the High Court’s decision in Barwick v Law Society of New South Wales [2000] HCA 2; 169 ALR 236 (“Barwick”): at [46].

7. [40]

   In deciding that it had jurisdiction to determine the Miscellaneous Application, the Tribunal agreed “generally with the submissions made by counsel for Dr Kovac”: at [50]. It concluded that it was appropriate for it to decide whether the failures on which Dr Kovac relied were made out and, if so, whether such errors deprived it of jurisdiction in the substantive case. In so concluding, the Tribunal did not accept the Board’s submission that authorities such as Kim and Plaintiff M174 were analogous to the type of proceedings before it, as those decisions involved administrative or merits review: at [55].

8. [41]

   The Tribunal accepted that disciplinary proceedings commenced under s 50 of the VP Act constituted “fresh proceedings” in which the Tribunal had to determine the complaints brought against the veterinary practitioner. However, the nature of those proceedings was to be contrasted with the proceedings contemplated by s 48 of the VP Act, which confers on a veterinary practitioner a right of merits review. Section 48(1) provides:

9. [42]

   The Tribunal considered that proceedings under s 50 were “more analogous to the occupational disciplinary proceedings considered in Barwick, and in subsequent cases in which the High Court’s approach in Barwick has been adopted, including in the context of different statutory schemes concerning occupational discipline”: at [56].

10. [43]

    The first thing to observe is that the Tribunal was correct to conclude that the question of whether it had jurisdiction to determine complaints six, seven and eight of the Disciplinary Application was a matter for it. The Tribunal’s conclusion in that regard was consistent with its obligation to consider the legal limits of its authority: see Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [22], [131] and [132] and the authorities there cited.

11. [44]

    Second, in circumstances where the parties put their arguments to the Tribunal on the basis that the cases on which they relied were mutually exclusive lines of authority, the Tribunal’s expression of its conclusions in terms of preferring the Barwick “approach” was understandable. However, as will be seen in relation to the second ground of appeal, describing the High Court’s decision in Barwick as involving an “approach” that was generally applicable to disciplinary proceedings led the Tribunal into error: at [81]. Ultimately, the issue in all of the cases that the parties respectively relied upon rested not upon the subject matter or nature of the review, but on the proper construction of the provisions in issue, informed by considerations of context and purpose.

12. [45]

    In Barwick, as was summarised in the joint judgment, Div 5 of Pt 10 of the Legal Profession Act 1987 (NSW) dealt with the investigation of complaints. As it was in force at the time of the resolutions, s 148 required, relevantly, the Council of the Law Society (Council) to investigate each complaint referred to it by the Legal Services Commissioner (Commissioner) or initiated by the Council, unless taken over by the Commissioner (s 148(3)). For the purposes of investigating a complaint, s 152 conferred certain powers on the Council to compel the provision of information, while s 154 required that an investigation be conducted as expeditiously as possible. Section 149 provided that the Commissioner was to monitor Council investigations into complaints, and that a Council was to report to the Commissioner on progress if required to do so. The Commissioner could also give the Council directions on the handling of a complaint (s 150): at [35].

13. [46]

    Relevantly, s 155(1) of the Act provided that “[a]fter a Council or the Commissioner has completed an investigation into a complaint … the complaint is to be dealt with in accordance with this section”. Section 155(2) required the Council or Commissioner to institute proceedings in the tribunal in relation to the legal practitioner “if satisfied that there is a reasonable likelihood that the legal practitioner … will be found guilty by the tribunal of unsatisfactory professional conduct or professional misconduct”: at [36]. The jurisdiction of the tribunal was conferred by s 167 and related to “proceedings … instituted … with respect to a complaint against a legal practitioner … by an information laid … in accordance with this Part”, being Pt 10: at [50].

14. [47]

    The joint judgment of Gleeson CJ, Gaudron and McHugh JJ construed the concluding words of s 167 as necessarily referring to s 155(2): at [46]. Those words indicated a correlation between the jurisdiction of the tribunal to deal with proceedings and “the duty of the Council or the Commissioner to institute proceedings, in certain circumstances, following a complaint, and what s 155 refers to as the completion of an investigation”: at [51]. Their Honours stated that not every departure from the procedures laid down by Pt 10, and Div 5 in particular, would result in a lack of jurisdiction under s 167. However, one of the purposes of the legislation was to bring about the result that “before a matter comes to the tribunal, it will have been the subject of a complaint which was the subject of an investigation monitored by the Commissioner and considered and dealt with by a Council or the Commissioner under s 155”: at [53]. As I will come to below in the context of ground 2, it was the monitoring aspect of the legislative regime that was not complied with in Barwick.

15. [48]

    Returning to the VP Act, the Tribunal outlined the statutory pathway under Pt 5 of the VP Act as involving the following steps (at [83]):

16. [49]

    It is apparent from this outline that the Board’s formation of the relevant state of satisfaction in s 47(2) or s 47(3) of the VP Act is a statutory precondition for the commencement of proceedings in the Tribunal. Additionally, however, s 47(1) requires that the Board comes to consider that question having “completed an investigation into a complaint against a veterinary practitioner”. An investigation under Div 2 of Pt 5 serves a similar purpose to the one identified by the joint judgment in Barwick, insofar as the Division contemplates that a matter will commence in the Tribunal following the Board having carried out an investigation into a complaint. Although the Tribunal considers the complaint afresh, the reference in s 50 of the VP Act to s 47, and in s 47(1) to completion of an investigation, emphasises the significance to the legislative regime that an investigation by the Board, as the body vested with the function of registering and regulating veterinary practitioners, precedes an application to the Tribunal.

17. [50]

    When the text and purpose of the provisions of Divs 2 and 3 of Pt 5 was raised with counsel for the Board at the hearing, he fairly accepted that inherent in the Board’s decision to apply to the Tribunal for a disciplinary finding against a veterinary practitioner, after completing an investigation, was a requirement that the Board conduct an investigation. An application made by the Board for disciplinary findings without it having conducted any investigation whatsoever would be fairly met by an argument that the Tribunal’s jurisdiction was not engaged.

18. [51]

    The requirement for an investigation by the Board under the VP Act, and the purpose it serves, told against the Board’s construction of ss 47 and 50, being that the formation of the Board’s state of satisfaction of the matters in s 47(2) and (3), as a matter of fact, was the sole precondition to the Tribunal’s jurisdiction. The regime in the VP Act may be contrasted in this respect with the statutory regime in issue in Brian Lawlor. In that case, s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) conferred jurisdiction on what was then the Administrative Appeals Tribunal in relation to decisions “made in the exercise of” powers conferred by an enactment, and decisions “made under” various provisions of statutory enactments. A majority of the Full Court of the Federal Court construed the word “decision” in that context as meaning a decision in fact made, regardless of whether it was legally effective. A liberal construction was appropriate to the nature and object of that Act “to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government”: at 334, 339 (Smithers J). Justice Smithers stated that excluding from review decisions made without power “would remove from review those decisions most in need of review” and would introduce technicality at the outset: at 335.

19. [52]

    In Plaintiff M174, Gageler, Keane and Nettle JJ referred to Brian Lawlor as having been “aptly described as a ‘landmark decision’ in the early history of the Administrative Appeals Tribunal”: at [39]. As their Honours pointed out at [40], the Full Court of the Federal Court has applied Brian Lawlor in the context of references in the Migration Act 1958 (Cth) to “decisions” of the Minister for Immigration that were reviewable by the former Refugee Review Tribunal and Migration Review Tribunal. The Full Court’s decision in Kim, on which the Board relied, was one such example. In the Full Federal Court’s earlier decision of Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; [2000] FCA 906, which the Full Court in Kim cited with approval, Gyles J (Spender J agreeing) observed that a construction of the provisions conferring jurisdiction on those tribunals where a decision was in fact made seemed “to best accord with a rational and coherent system of review on the merits of adverse decisions as to protection visas” (or, I interpolate, adverse decisions as to other visas, which would come before the Migration Review Tribunal): at [95].

20. [53]

    Similarly, Plaintiff M174 concerned the scope of the power of the Immigration Assessment Authority (IAA) under Pt 7AA of the Migration Act to review a “fast track reviewable decision”. The specific issue in Plaintiff M174 was whether the IAA’s power of review was limited to a decision that complied with the statutory code of procedure in subdivision AB of Div 3 of Pt 2 of the Act. The plaintiff sought to distinguish Brian Lawlor on the basis that the form of review that was available in respect of a fast track decision was more limited than was available in Brian Lawlor: at [41]. In concluding that a “fast track reviewable decision” required nothing more than the making of a decision to refuse to grant a protection visa in fact, the joint judgment accepted that Pt 7AA of the Act was “undoubtedly framed on the assumption that a decision to refuse to grant a protection visa to a fast track applicant will ordinarily have been made in compliance with the code of procedure”: at [45]. It did not follow, however, that review under Pt 7AA was only permitted for a decision made in compliance with that code. Ultimately, the joint judgment concluded at [51]:

21. [54]

    Returning to the VP Act, as the Tribunal observed, s 48 of the VP Act confers a right of review on a person “in respect of whom the Board has made a disciplinary finding”. The Board submitted that if the Tribunal’s conclusion was correct, and it could consider the procedural steps leading to a Board’s decision under s 47(2) or (3) in determining whether it had jurisdiction with respect to an application made by the Board, it could also consider those steps in considering whether its jurisdiction under s 48 of the VP Act was engaged. The Board submitted that requiring that the satisfaction in s 47 of the VP Act be formed in compliance with the statutory requirements in Div 2 so as to engage the Tribunal’s jurisdiction under s 48 would introduce unnecessary complexity.

22. [55]

    Those submissions did not recognise that the terms of s 48 of the VP Act, and its purpose, are much closer to those in issue in Brian Lawlor and the decisions under the Migration Act on which the Board relied, and in contrast to ss 47 and 50. First, by contrast with s 50 of the VP Act, s 48 is not drafted by reference to the Board having made a disciplinary finding “in accordance with section 47”. All that is required is the making of “a disciplinary finding”, which is defined in s 35 to mean “a finding of unsatisfactory professional conduct or professional misconduct”.

23. [56]

    Secondly, the review for which s 48(1) of the VP Act provides is “administrative review under the Administrative Decisions Review Act 1997 of that finding and any action taken by the Board under section 47”. Section 9(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) confers administrative review jurisdiction on the Tribunal over “a decision” of an administrator where there is enabling legislation which provides that an application may be made to the Tribunal for an administrative review under the ADR Act. The term “decision” is broadly defined in s 6 for the purposes of the ADR Act to include, inter alia, a decision made under enabling legislation “in the exercise (or purported exercise)” of a function conferred or imposed by the legislation (s 6(2)), and a decision that purports to be made under enabling legislation even if the decision was beyond the power of the decision-maker (s 6(3)).

24. [57]

    In summary, in seeking to strike out complaints six, seven and eight, Dr Kovac submitted that the Board had not “completed an investigation” in accordance with s 47 of the VP Act because it had not complied with the procedure for which Div 2 of Pt 5 of the Act made provision. Specifically, the Committee had not complied with the requirement in s 41, picked up by s 42(5), to invite Dr Kovac to provide a written response to the further matters within a period of at least seven days. It followed, in his submission, that the Board’s application for a disciplinary finding under s 50 was not made “in accordance with s 47”, as that section applies only “[a]fter the Board has completed an investigation into a complaint against a veterinary practitioner” (see s 47(1)). The Tribunal was correct to conclude that it could consider that argument. I reject ground 1.

Ground 2: The Tribunal erred in finding that the procedures prescribed in Pt 5 of the VP Act were substantially bypassed in relation to complaints six, seven and eight of the Disciplinary Application, so as to deprive the Tribunal of jurisdiction

1. [58]

   In advancing his argument as to jurisdiction, Dr Kovac did not submit that the steps that the Board took resulted in a denial of procedural fairness. He could not have done so. As I noted above, and as the Board pointed out in its submissions to the Tribunal:

   1. (1)

      the Board raised the concerns that ultimately became the subject of the further matters with Dr Kovac in a letter of 7 September 2020, to which Dr Kovac was invited to respond, and did respond;

   2. (2)

      by letters dated 27 November 2020 and 8 February 2021, the Board particularised the further matters, and the type of unsatisfactory professional conduct that it considered may be indicated by those matters, in the context of issuing a summons to Dr Kovac to attend a hearing;

   3. (3)

      Dr Kovac’s representatives responded in writing, in detail, in a letter dated 17 February 2021;

   4. (4)

      Dr Kovac attended the hearing on 26 February 2021 (over three months after the Board first particularised the further matters); and

   5. (5)

      the Committee considered both the written response and his evidence at the hearing in deciding to refer the complaints to the Tribunal.

2. [59]

   Instead, Dr Kovac’s challenge to the Tribunal’s jurisdiction with respect to complaints six, seven and eight of the Disciplinary Application rested, relevantly for present purposes, on the Committee’s failure to comply in part with s 41 of the VP Act. The Tribunal summarised Dr Kovac’s submission at [145] of its reasons:

3. [60]

   The Board submitted that the Committee gave Dr Kovac notice of the further matters, as well as the type of unsatisfactory professional conduct or professional misconduct the Committee considered may be indicated by those matters, by its letters of 27 November 2020 and 8 February 2021. It further submitted that Dr Kovac had been on notice of the substance of the further matters as a result of the 7 September 2020 letter. In circumstances where Dr Kovac did not suffer any prejudice as a result of receiving the notification he did, having provided a written response which the Board considered, the Board submitted that the process undertaken was procedurally fair and did not deprive the Tribunal of jurisdiction to hear complaints six, seven and eight: at [141]-[142].

4. [61]

   The Tribunal accepted that s 42(3) of the VP Act permitted the Board to deal with further matters arising in an investigation as if a complaint had been made about the matter. However, s 42(5) provides that if the Board deals with a matter in accordance with s 42(3) it “is to comply” with s 41 in relation to the matter, “with appropriate modifications”: at [157]. The Tribunal considered that the written notice that the Board gave of the further matters should have invited Dr Kovac to make written representations within a specified period of at least seven days: at [160]. In its view, the letter of 27 November 2020, the letter of 8 February 2021 and the earlier letter of 7 September 2020 all failed to provide such an opportunity: at [161]. It followed, the Tribunal concluded, that Dr Kovac “was not provided with the requisite notice of, including an opportunity for written response to, the further matters because the Complaints Committee (as delegate of the Board) failed to comply with s 41(2)”: at [163].

5. [62]

   Having so concluded, the Tribunal stated that the appropriate approach was to consider whether, “consistently with the approach in Barwick”, the failure “to comply with an express requirement of s 41(2) in relation to the further matters involved a ‘substantial bypassing’ of the procedures laid down in Pt 5 of the VP Act, in light of the legislative purpose of Pt 5, such as to deprive NCAT of jurisdiction in relation to those further matters”: at [166]. The Tribunal agreed with Dr Kovac’s submission that “strict compliance with procedural safeguards in Pt 5 is required”. The statutory notification requirements by which the practitioner concerned “is to be provided with an essential opportunity to make written representations in relation to the allegations put is not an empty formality, nor is it a procedural safeguard which can be treated as optional by the Board or its delegate”: at [167] (emphasis added).

6. [63]

   As with Dr Kovac’s submissions, the Tribunal’s characterisation of the requirements in s 41 as “strict”, and the opportunity to make written representations as “essential”, assumed the answer to the question of statutory construction that arises in this context. That question is “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93]. Far from constituting or mandating an approach to legislation of the type there in issue, the joint judgment in Barwick directed itself to that very question.

7. [64]

   By way of further background to the decision in Barwick, in August 1992, an officer of the Law Society conducted a routine account inspection of the appellant’s trust account and formed the view that a number of transactions involving the advancing of loan monies were irregular: at [6]. Various requests for information were made of the appellant between late 1992 and through 1993, to which he responded: at [16]. In 1994, information was requested and obtained from the affected clients. The appellant also made a number of representations to a Professional Conduct Committee of the Law Society, which had put him on notice that it would likely form the view that he had engaged in professional misconduct.

8. [65]

   The above steps took place without a complaint having been initiated under the Legal Profession Act in respect of the appellant: at [22]. On 8 June 1995, at a joint meeting of the Law Society’s Professional Conduct Committees, acting under delegation from the Council of the Law Society, two resolutions were passed. The first resolution was to initiate a complaint against the appellant pursuant to s 135(1) of the Legal Profession Act in relation to professional misconduct involving misleading the Law Society and misapplying client assets and funds. Having passed that resolution, “within about a minute” the Committees further resolved that they were satisfied that there was a reasonable likelihood that the appellant would be found guilty by the tribunal of professional misconduct and that proceedings should be instituted in the tribunal, in accordance with s 155(2) of the Legal Profession Act: at [22].

9. [66]

   On 30 September 1996, an information against the appellant was filed in the tribunal: at [23]. On 24 July 1997, the Law Society filed an amended information following investigation of further allegations concerning the appellant. Before it filed the amended information, the Council resolved that a complaint against the appellant be initiated in relation to the further allegations and then immediately resolved that the Council was satisfied that there was a reasonable likelihood that he would be found guilty by the tribunal of professional misconduct and that proceedings should be instituted in the tribunal: at [25]-[26].

10. [67]

    Relying on the sequence of Council resolutions that grounded the information filed in the tribunal and its subsequent amendment, the appellant submitted that no investigation was conducted between the making of the complaint and the institution of tribunal proceedings: at [29]. He submitted that the Council’s handling of the complaints involved a substantial failure to comply with the provisions of Div 5 of Pt 10 and, as a result, there was no information laid “in accordance with” Pt 10 so as to found the jurisdiction of the tribunal: at [44]. Similarly to Dr Kovac, the appellant in Barwick did not claim that he was denied procedural fairness in the sense of not having a proper opportunity to understand and respond to the charges against him. However, he submitted that Div 5 had additional objects which were disregarded in the procedure that was adopted: at [44].

11. [68]

    The joint judgment observed that the first question to be considered was “whether a failure to follow the procedures prescribed by Div 5, in the absence of any complaint of denial of procedural fairness, affects the jurisdiction of the tribunal under Div 8”: at [45]. Their Honours had earlier observed at [32] that one of the objects of Pt 10 of the Legal Profession Act was to ensure that the rules of natural justice were applied to any disciplinary proceedings against legal practitioners. At [52], their Honours identified another important aspect of Div 5 of Pt 10, namely, “the duty imposed upon the Commissioner, under s 149, to monitor investigations by a Council”. Their Honours considered that “[o]ne evident purpose” of s 149 was to enable the Commissioner to supervise the way in which a Council deals with a complaint “and to ensure, for example, that the conduct of a practitioner is treated with appropriate seriousness”: at [52].

12. [69]

    After referring to the sequence of events in the present case, whereby complaints were initiated against the appellant and immediately followed by a resolution that an information be laid, the joint judgment stated:

13. [70]

    Their Honours concluded that the Council did not appear to have directed its attention to the need for the initiation of a complaint, and compliance with Div 5, until late in the course of its inquiries. At that point, the Council passed resolutions which “telescoped” those procedures: at [62]. Their Honours considered that it would be inconsistent with the legislative purpose to conclude that the tribunal had jurisdiction in circumstances where the procedures established by Div 5 had been substantially bypassed: at [63].

14. [71]

    Returning to the question of whether a legislative purpose can be discerned in the VP Act that a partial non-compliance with s 41 should deprive the Tribunal of jurisdiction, it is significant that while s 42 requires the Board to investigate a complaint, neither s 42 nor the other provisions in Div 2 of Pt 5 stipulate that an investigation take any particular form, or be of any particular duration. The provisions in Div 2 are instead directed to the Board making a decision under s 47 of the VP Act, after completing an investigation that the registered veterinary practitioner is on notice of, and in respect of which the practitioner has had a meaningful opportunity to be heard. As the Tribunal set out in its summary of the statutory pathway at [83] of its reasons, the provisions cover notification of the complaint (s 41), the Board’s obligation to investigate each complaint (s 42) (subject to s 46), and the tools that are available to the Board in discharging the obligation to investigate in s 42 (ss 43, 45A).

15. [72]

    Section 42(3) of the VP Act constitutes legislative recognition that in the course of investigating a complaint, matters may arise in respect of which another complaint could have been made, and facilitates the Board investigating such matters as part of the same investigation. When the Board takes that regulatory step, s 42(5) requires, as was required at the outset of the original complaint, that it comply with the notification requirements in s 41. However, the subsection expressly recognises that strict compliance with s 41 may not be practicable in the circumstances, or necessary. The parenthetical qualification in s 42(5) — “(with appropriate modifications)” — reflects that there will be a range of circumstances in which the Board may decide, in the midst of an investigation, to deal with a further matter as if a complaint had been made. Save for requiring that the modifications be “appropriate”, the legislature has vested consideration of modifications in the Board.

16. [73]

    In considering the effect of non-compliance with a statutory requirement or condition, it is relevant to consider the extent and consequences of the departure from the statute: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 (“SZIZO”) at [35]. At issue in SZIZO were ss 441A and 441G of the Migration Act, which prescribed how the Refugee Review Tribunal was to notify an applicant of a hearing and invite the applicant to attend. By way of summary, where an applicant had an authorised representative, the provisions required that the hearing invitation be sent to the authorised representative. In SZIZO, contrary to the imperative language of the provisions, the hearing invitation was sent to the respondents personally, even though they had an authorised representative to whom the invitation should have been sent. Nonetheless, the respondents received the invitation and they attended the hearing. The Court stated at [35]:

17. [74]

    The Tribunal in the present case made a similar observation at [84] of its reasons, stating that “[w]hether failures to comply with antecedent statutory steps under the VP Act before Tribunal proceedings are commenced deprives NCAT of jurisdiction will depend on the nature of both the statutory step and the extent of any breach”. However, when it came to consider the Board’s non-compliance with s 41, the Tribunal did not engage with the issue in this way.

18. [75]

    The Tribunal referred to s 41 as an express requirement that was designed to ensure procedural fairness during the investigation stage of a professional disciplinary matter: at [170]. So much may be said of each of the provisions in Div 2 of Pt 5 of the VP Act that concern the Board’s investigation of a complaint. However, Dr Kovac did not contend that the Board denied him procedural fairness with respect to the further matters, including as a result of the Board’s non-compliance with s 41. Rather, he submitted that because the Committee had not complied with the requirement to invite him to provide a written response to the further matters within a period of at least seven days, the Tribunal was deprived of jurisdiction with respect to those complaints. The Tribunal accepted that submission without acknowledging that the express terms of s 42(5) told against strict compliance with s 41 being necessary, as did the very circumstances of the present case.

19. [76]

    The difficulty with the Tribunal’s reasoning is highlighted in its conclusion at [172]:

20. [77]

    The Tribunal stated at [173] that, “consistently with Barwick”, the Board’s application to the Tribunal was rendered invalid. However, the Tribunal’s decision was not the product of an exercise in discerning legislative purpose akin to what the High Court undertook in that case. Indeed, what is clear from the joint judgment’s reasons in Barwick, which I have set out in some detail above, is that the Court was not saying that every departure from the procedures laid down by Pt 10 of the Legal Profession Act, and Div 5 in particular, would have resulted in a lack of jurisdiction on the part of the tribunal. In the present case, the Tribunal effectively assumed that non-compliance with any part of s 41 of the VP Act resulted in invalidity, without considering whether the provisions disclosed that legislative intention. It erred in doing so. Ground 2 is made out.

Ground 3: the Tribunal constructively failed to exercise its jurisdiction in failing to determine a clearly articulated and substantive argument made by the Board

1. [78]

   Counsel for Dr Kovac accepted that if error was found in relation to ground 2, the consequences of that finding would flow through to this ground. The Board submitted that, to the extent that the Tribunal failed to appreciate that Dr Kovac had in fact made written representations, it had failed to engage with a substantive argument that the Board had made and thereby constructively failed to exercise its jurisdiction.

2. [79]

   I accept that this ground was also made out. In proceeding on the assumption that strict compliance with s 41 of the VP Act was necessary, the Tribunal did not engage with the submission that the Board advanced in relation to the Committee’s exchange of correspondence with Dr Kovac, in particular his written response of 17 February 2021. Its reasoning in [172], which I have set out above, makes this clear. I would uphold ground 3.

Conclusion

1. [80]

   I would uphold grounds 2 and 3 of the amended notice of appeal. Although I would dismiss ground 1, it was reasonably arguable and raised a point of some general importance as to the proper construction of the provisions of the VP Act conferring jurisdiction on the Tribunal. Accordingly, leave should be granted to the extent necessary and the appeal allowed. Neither party advanced submissions that there should be any departure from the ordinary rule as to costs.

2. [81]

   Accordingly, I propose the following orders:

   1. (1)

      Grant leave to appeal to the extent a grant of leave is necessary.

   2. (2)

      Appeal allowed.

   3. (3)

      Set aside orders 1 and 2 of the orders of the NSW Civil and Administrative Tribunal dated 28 August 2025 and in lieu thereof, order that the Application for miscellaneous matters made by Dr Kovac and lodged with the Tribunal on 31 January 2025, as amended on 2 May 2025, is refused.

   4. (4)

      The respondent pay the applicant’s costs of the appeal.

3. [82]

   ADAMSON JA: I agree with Mitchelmore JA.

4. [83]

   McHUGH JA: I agree with Mitchelmore JA.